Filed 8/20/26 Romero v. LaserAway CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
STEVEN ROMERO, B343347
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 21STCV23492)
v.
LASERAWAY, LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Shirley K. Watkins, Judge. Affirmed.
Dordick Law Corporation, Gary A. Dordick and John M.
Upton for Plaintiff and Appellant.
Horvitz & Levy, Jason R. Litt, Andrew G. Spore; Koeller,
Nebeker, Carlson & Haluck, Robert C. Carlson, Jr. and Scott A.
Davis for Defendant and Respondent.
____________________________
Plaintiff Steven Romero appeals from the denial of his
motion for a new trial in an action arising from an accident in
which defendant LaserAway, LLC’s employee struck pedestrian
Romero with a truck.
Romero filed his new trial motion after the jury returned a
10-to-2 verdict finding LaserAway’s employee was not negligent.
He supported his motion with a posttrial declaration from
Juror No. 7 stating the juror believed Romero stepped in front of
the truck on purpose as an insurance fraud scheme, and that she
believed insurance fraud was common in the Mexican
community.
LaserAway opposed the motion, filing a second declaration
from Juror No. 7 disclaiming any bias or that she said anything
in deliberations about insurance fraud or Romero deliberately
causing the accident. LaserAway also provided declarations from
three other jurors corroborating Juror No. 7’s averment that she
had not exhibited bias during deliberations or said anything
about insurance fraud or Romero’s role in the accident. The trial
court found these declarations demonstrated there was no
misconduct. Alternatively, the court held any misconduct did not
prejudice Romero because the jury voted 10 to 2 for LaserAway,
and Juror No. 7 therefore was not the deciding vote.
We decline to reach the question whether Juror No. 7 was
actually biased, because assuming arguendo she was, we agree
with the trial court Romero was not prejudiced. There was
substantial evidence to support the trial court’s finding Juror
No. 7’s bias, if any, did not affect the other jurors, and because
Juror No. 7 was not the deciding vote, any hidden bias did not
affect the outcome.
2
In so ruling, we do not discount the potential for racial and
ethnic bias in the jury box, express or implicit. The standard of
review and the prejudice requirement are determinative here and
compel affirmance.
BACKGROUND
1. Complaint, verdict, and Romero’s motion for a new
trial
Romero, through a guardian ad litem, filed a complaint
against LaserAway and others after a truck driven by a
LaserAway employee struck pedestrian Romero.1 The complaint
alleged Romero suffered “severe permanent physical and mental
injuries.”
Following trial, the jury returned a 10-2 special verdict
finding the LaserAway employee driving the truck was not
negligent. The trial court entered judgment for LaserAway.
Romero moved for a new trial. Romero’s motion contended
Juror No. 7 “was harboring undisclosed, racially biased views
regarding Mexicans and pedestrian accidents,” thus depriving
Romero of a fair and unbiased jury. As previously noted, Juror
No. 7 was part of the 10-juror majority that found LaserAway’s
employee not negligent.
Accompanying Romero’s motion was his counsel’s
declaration in which counsel stated he had spoken to Juror No. 7
after the trial, and “came to the understanding that [Juror No. 7]
had a particular mindset about this type of case that seemed to
me to be indicative of actual bias.” Romero’s counsel sent an
1LaserAway was not named in the original complaint, but
Romero later substituted LaserAway in for a Doe defendant.
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investigator to speak with Juror No. 7, and the investigator
obtained a signed declaration from Juror No. 7.
Juror No. 7’s declaration averred that the jury took a poll
at the beginning of deliberations, and in that poll, eight of the 12
jurors indicated they were in favor of LaserAway. Deliberations
proceeded, and Juror No. 7 and others suggested they could not
find in favor of Romero without knowing why Romero was in the
road at the time he was struck. Juror No. 7 suggested to the rest
of the jurors that Romero may have walked in front of the truck
on purpose.
Juror No. 7’s declaration continued, “I also relied on my
personal experience as a workers compensation insurance
adjuster to know that people walk in front of cars deliberately to
collect insurance money. In my experience, this particular type of
insurance fraud is most commonly seen in the Mexic[an]
community. While we did not have [Romero’s] testimony, we did
have sufficient information to know that Mr. Romero was in fact
from Mexico. I find the problem to be a cultural problem. I have
he[a]rd of friends that go there and know about the fact that
people walk in front of cars to cause an accident. Based on this
life experience, I took into consideration the fact that this could
have been a staged accident. I found there to be no negligence on
[LaserAway] for that reason.”
2. LaserAway’s opposition
LaserAway opposed the new trial motion and filed a second
declaration from Juror No. 7, as well as declarations from Juror
Nos. 1, 6, and 10, all of whom were part of the 10-juror majority
that voted in favor of LaserAway. LaserAway objected to Juror
No. 7’s first declaration under Evidence Code section 1150 as
inadmissible evidence of jurors’ mental processes.
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Juror No. 7’s second declaration averred that when the jury
took the initial poll, she was one of four jurors “either unsure or
in favor of finding some degree of negligence by [LaserAway’s
employee].” She asserted she ultimately voted in favor of
LaserAway “based solely on the evidence presented at trial and
the law as instructed to me by the judge.” She denied saying
during deliberations “anything about insurance fraud or people
deliberately walking in front of cars to collect insurance money. I
also did not say anything about Mexico, Mexican culture, or
insurance fraud in Mexico or the Mexican community or culture.”
“Only after the jury had reached its verdict, I made a statement
that plaintiff may have walked in front of the vehicle on purpose.”
Juror No. 7 further averred Romero’s counsel’s investigator
had handwritten her first declaration, and Juror No. 7 “just
skimmed the declaration before signing.” She asserted she did
not read the declaration carefully because she was “ready for [the
investigator] to leave.” She claimed that at the time she was
tired and “wanted to get back to watching my favorite television
show.”
Juror No. 7 averred she “d[id] not remember” telling the
investigator she voted in LaserAway’s favor based on her
experience as a claims adjuster or a belief that people walk in
front of vehicles to collect insurance money. She denied telling
the investigator she believed insurance fraud was a cultural
problem in the Mexican community, “[a]nd I don’t believe that to
be true.” She denied “harbor[ing] any anti-Mexican bias,” and
did not conceal anything during voir dire.
Juror No. 1 averred Juror No. 7 was one of three undecided
jurors at the beginning of deliberations. Juror No. 1 asserted
deliberations focused on the truck driver’s conduct, not Romero’s.
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Juror No. 1 denied Juror No. 7 or any other juror “said anything
about insurance fraud or people deliberately walking in front of
cars to collect insurance money. Neither [Juror No. 7] nor any
other juror said anything about Mexico, Mexican culture, or
insurance fraud in Mexico or the Mexican community or culture.”
Juror No. 1 did not recall any juror suggesting Romero stepped in
front of the vehicle on purpose, “[b]ut if such a comment was
made, it was made only after the jury had reached its verdict.
Only at that point did some jurors begin to discuss why [Romero]
may have been in the middle of the street.” Juror No. 1 never
heard any juror “express bias or prejudice against anyone of any
race or national origin.”
Juror No. 6 similarly averred Juror No. 7 was among the
undecided jurors at the start of deliberations, the jury’s
discussion focused on the driver’s conduct rather than Romero’s,
and no one said anything about insurance fraud, walking in front
of cars deliberately, or Mexico or its culture. Juror No. 6 did not
recall anyone suggesting during deliberations that Romero might
have walked in front of the truck on purpose, although after the
jury had reached its verdict “some jurors began discussing why
[Romero] might have been in the middle of the street where he
was struck.” Juror No. 6 never heard any juror express bias
based on race or national origin.
Juror No. 10 corroborated the deliberations focused on the
driver’s conduct rather than Romero’s, and no one mentioned
insurance fraud, deliberately walking in front of cars, or Mexico
and its culture. Juror No. 10 averred, “If any juror expressed
during deliberations the idea that [Romero] may have walked in
front of the vehicle on purpose, it was . . . Juror No. 4[ ] who
floated that idea.” “Apart from [Juror No. 4’s] statement, the
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idea that Mr. Romero had attempted suicide was not discussed
further.” Juror No. 10 denied any juror expressed bias based on
race or national origin.
Juror No. 10’s declaration further averred, “After the
verdict was decided, the foreperson asked whether anyone
wanted to give their thoughts about the trial, because we had
been here for a month and had not been able to do that under the
judge’s instructions. At this point, some jurors began discussing
[Romero’s] conduct and how little we knew about him or what he
was doing the morning of the accident.”
3. Trial court’s ruling
The trial court denied the motion for a new trial.
Explaining its reasoning, the court first found both of Juror
No. 7’s declarations and the other three juror declarations
admissible.2 The court did not find Juror No. 7’s first declaration
credible. The court found Juror No. 7’s second declaration
credible, however, because of the other jurors’ declarations
“support[ing] [Juror No. 7’s] testimony that she made no
statements about insurance fraud or Mexican culture/community
2 At the beginning of its written order, the trial court
stated it sustained LaserAway’s objections numbered 1–5, which
included the objections to Juror No. 7’s first declaration. Given
the court’s subsequent express statement that it found both of
Juror No. 7’s declarations admissible, we conclude that later
statement controls and the court did not intend to sustain the
objections to Juror No. 7’s first declaration. (People v. Beltran
(2013) 56 Cal.4th 935, 945, fn. 7 [“ ‘ “when . . . the record is in
conflict . . . that part of the record will prevail, which, because of
its origin and nature or otherwise, is entitled to greater
credence” ’ ”].)
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during deliberations.” The court found Romero therefore “failed
to establish any misconduct by the jury or any irregularity during
voir dire.” The court continued, “In addition, as the vote was 10-2
finding no liability, there also was no prejudice to [Romero].”
Romero timely appealed.
DISCUSSION
A. Applicable Law
“[W]hen a trial court is considering a new trial motion
based on jury misconduct, it must undertake a three-step inquiry
and decide (1) whether affidavits supporting the motion are
admissible, (2) whether the evidence establishes misconduct
occurred, and (3) whether the misconduct was prejudicial.” (TRC
Operating Co., Inc. v. Chevron USA, Inc. (2024) 102 Cal.App.5th
1040, 1063 (TRC) review dismissed June 18, 2025, S286233.)
“[A] finding of misconduct creates a presumption of
prejudice.” (TRC, supra, 102 Cal.App.5th at p. 1083.) The
burden then shifts to the opposing party to rebut the
presumption. (See People v. Hem (2019) 31 Cal.App.5th 218,
229–230.) The presumption “can be rebutted . . . by either ‘an
affirmative evidentiary showing that prejudice does not
exist or by a reviewing court’s examination of the entire record to
determine whether there is a reasonable probability of actual
harm to the complaining party resulting from the misconduct.’
[Citation.]” (TRC at pp. 1083–1084, italics omitted.)
On review of a juror misconduct ruling, we “ ‘accept the
trial court’s factual findings and credibility determinations if they
are supported by substantial evidence, but . . . exercise [our]
independent judgment to determine whether any misconduct was
prejudicial.’ [Citation.]” (People v. Stayner (2026) 19 Cal.5th 395,
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562.) We defer to the trial court’s factual findings and credibility
determinations “whether the trial court’s ruling is based on oral
testimony or declarations.” (Shamblin v. Brattain (1988)
44 Cal.3d 474, 479; accord, Haraguchi v. Superior Court (2008)
43 Cal.4th 706, 711, fn. 3.)
B. LaserAway Successfully Rebutted the Presumption
of Prejudice
Romero argues Juror No. 7’s first declaration demonstrated
racial bias, and Juror No. 7’s failure to disclose that bias during
jury selection constitutes prejudicial juror misconduct meriting a
new trial.3 He argues the trial court’s credibility determination,
which favored Juror No. 7’s second declaration over her first, is
not supported by substantial evidence.
LaserAway argues Juror No. 7’s first declaration was
inadmissible under Evidence Code section 1150, and even if
admissible, under the applicable standard of review this court
must defer to the trial court’s finding the first declaration was
not credible. LaserAway alternatively argues Romero was not
prejudiced by Juror No. 7’s purported bias because “the jury’s
10-to-2 verdict shows the vote of a single juror would not have
made any difference.”
We agree with LaserAway that, even if arguendo Juror
No. 7’s first declaration was admissible and established she
concealed racial bias during voir dire, there was no prejudice
under the facts as found by the trial court. Setting aside the
3 For purposes of this appeal we adopt Romero’s
characterization of Juror No. 7’s purported bias as based on race,
but recognize it could also be characterized as bias based on other
protected characteristics such as ethnicity or nationality.
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credibility of Juror No. 7’s own declarations, the other jurors’
declarations are substantial evidence supporting the trial court’s
conclusion that Juror No. 7 did not say anything during
deliberations about the possibility that Romero stepped in front
of the truck on purpose, nor did she say anything about insurance
fraud or Mexicans. Romero concedes “the other juror
declarations . . . confirm[ed] that [Juror No. 7] never made any
such statements during deliberations.” Thus, there is substantial
evidence rebutting any presumption that Juror No. 7’s purported
bias prejudiced Romero by causing the other jurors to vote
against Romero when they otherwise would not.
Romero argues that even if the other jurors’ declarations
establish Juror No. 7 did not say anything overtly biased during
deliberations, those declarations do not prove Juror No. 7 “did not
harbor such bias or that it did not affect her vote.” (Boldface &
italics omitted.) Romero contends that by focusing on Juror No.
7’s conduct during deliberations, “the trial court never even
attempted to assess the fundamental issue of whether [Juror No.
7] did, in fact, harbor a racial bias against Romero.” (Italics
omitted.)
Even assuming Juror No. 7 harbored a hidden bias against
Romero, we do not see how this affected the outcome. “[C]ivil
juries need not be unanimous.” (TRC, supra, 102 Cal.App.5th at
p. 1089.) Thus, “ ‘where a jury renders a unanimous verdict
against the complaining party, evidence of only one
impermissibly tainted juror does not compel reversal as in a
criminal case because the remaining untainted jurors were
sufficiently numerous to render a proper and fair verdict, and the
record conclusively rebuts the presumption of
prejudice.’ [Citation.]” (Ibid.)
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Here, the verdict was 10 to 2 in favor of LaserAway, so even
without Juror No. 7 there were enough jurors to render an
unbiased verdict for the defense.
We recognize that “vote counting is not the sole arbiter of
whether prejudice has occurred.” (TRC, supra, 102 Cal.App.5th
at p. 1090.) Romero speculates Juror No. 7’s purported bias,
“while not expressed ‘out loud,’ may well have resulted in her
presentation of convincing arguments for a defense verdict.” He
cites a law review article for the principle that certain juries
engage in “ ‘verdict-driven’ ” deliberations, characterized by
“ ‘jurors polling each other early on in deliberations and then
exerting pressure to get the minority jurors to side with the
majority.’ ” (Italics & fn. omitted.)4 Again quoting the law
review article, Romero argues, “ ‘If one or more jurors decide
right away which is the winning side without adhering much to
the true facts of the case, the evidence presented, and the jury
instructions, that could be problematic for the rest of the jury and
ultimately, the minority [party].’ ” “[I]f ‘such jurors reside in the
majority for reaching a verdict against the minority [party], those
jurors can exert their pressure, along with the rest of the
majority, to get the less participatory (and more likely women or
minority) jurors to join the majority and reach a verdict against
the [minority party].’ ”
Juror No. 7’s second declaration and the other jurors’
declarations are substantial evidence Juror No. 7 did not exert
pressure on the other jurors to reach a defense verdict based on a
biased view of the case. Juror No. 7 and two of the other jurors
4 Romero’s cited law review article is Saddler, A
Defendant’s Race as a Determinant of the Outcome of His Lawsuit
(2019) 2019 U. Ill. L.Rev. 1771.
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averred that when the jury took a poll at the beginning of
deliberations, Juror No. 7 was among the minority of undecided
or plaintiff-inclined jurors. She therefore did not “ ‘decide right
away which is the winning side,’ ” as Romero posits.
Given substantial evidence supports the trial court’s
finding Juror No. 7 did not express bias during deliberations or
pressure the other jurors based on her purportedly biased view of
the case, we conclude vote counting is an appropriate measure of
prejudice in this case, and is fatal to Romero’s claim of jury
misconduct.
Romero argues the presence of a biased juror should be
structural error for which a showing of prejudice is unnecessary,
as it can be in the criminal context. (In re Carpenter (1995)
9 Cal.4th 634, 654 [“if it appears substantially likely that a juror
is actually biased, we must set aside the verdict, no matter how
convinced we might be that an unbiased jury would have reached
the same verdict”].) He argues, “[T]he burden of establishing a
different result from bias concealed on voir dire should not fall on
the party impacted by that bias.” (Italics omitted.)
“A strict rule that one tainted juror compels reversal is
necessary in criminal cases because under the California
Constitution, the jury must unanimously agree that a defendant
is guilty.” (Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d
314, 322.) Because jurors need not be unanimous in civil cases,
however, “the strict . . . rule regarding one tainted juror is neither
necessary nor appropriate.” (Ibid.) We decline to deviate from
case law requiring a showing of prejudice before we may reverse
a civil verdict based on juror misconduct.
We further note existing law does not impose a burden on
the party complaining of jury misconduct to establish prejudice —
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rather, the law presumes prejudice upon a showing of juror
misconduct, thus placing the burden on the opposing party to
rebut that presumption. (TRC, supra, 102 Cal.App.5th at
p. 1083.) “ ‘The law thus recognizes the substantial barrier to
proof of prejudice” in cases of juror misconduct. (Ibid.) Although
the presumed-prejudice rule falls short of the structural error
rule urged by Romero, the deck is not as stacked against him as
he implies.
In affirming the judgment, we do not intend to minimize
the importance of identifying and rooting out racial bias, both
explicit and implicit, from judicial proceedings, and we recognize
the historical harms caused by such bias. In this case, however,
in which Juror No. 7 was not the deciding vote and the trial court
found credible LaserAway’s affirmative evidence that her
purported bias did not affect the other jurors in arriving at their
verdict, we cannot conclude that bias prejudiced Romero.
DISPOSITION
The judgment is affirmed. LaserAway, LLC is awarded its
costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. M. KIM, J.
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